Section – 26
Section – 26 of Evidence Act
Confession by accused while in custody of police not to be proved against him
Section – 26 of Evidence Act
Admissibility of custodial confession (Sec.26)
- Section 26, Confession by accused while in custody of police not to be proved against him: No confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
- Section 26 is the extension of the principle laid down in Section 25. While Section 25 applies to all confessions made to some police officers, this section includes confession made to “any person” other than police officer, while in police custody.
- Under this section, it is provided that no confession made by an accused to any person while in custody of a police officer shall be proved against him unless it is made in the immediate presence of a Magistrate.
- Thus, the section is intended to prevent of coercive method of extorting confession.
- “The reason is that a person in the custody of police is presumed to be under their influence and it provides opportunities for offering inducement or extorting confession, but the presence of a Magistrate is a safe guard and guarantees the confession.”
Immediate presence of a Magistrate: An exception:
- The confession in presence of a magistrate by the accused is an exception to the general rule laid down in Sections 24, 25 and 26. A confession by the accused in presence of a magistrate is relevant only when it is done in accordance with rules laid down in Sections 164 and 364 of the Code of Criminal Procedure, 1973.
- If the magistrate fails to observe procedures and formalities of Sections 164 and 364, Cr. PC, even though the confession is made by the accused in immediate presence of a magistrate, it is inadmissible.
- If the confession was not recorded by a competent magistrate the confession of a person in police custody would not be relevant.
In Dagdu v. State of Maharashtra, A.I.R. 1977 S.C. 1579, supreme court noted:
- The archaic attempt to secure confessions by hook or by crook seems to be the be-all and end-all of the police investigation. The police should remember that confession may not always be a short-cut to solution. Instead of trying to “start” from a confession they should strive to “arrive” at it. Else, when they are busy on their short-route to success, good evidence may disappear due to inattention to real clues. Once a confession is obtained, there is often flagging of zeal for a full and thorough investigation with a view to establish the case de hors the confession, later, being inadmissible for one reason or other, the case fundles in the court.
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